in the Interest of C.L.P. Jr., D.R.P., D.J.W., K.H.W. Minor Children

• Court: Court of Appeals of Texas
• Decided: January 25, 2006
• Docket: 07-06-00007-CV
• Status: Published

Opinion

NO. 07-06-0017-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 25, 2006

______________________________

IN RE JOHANSON LEE WATSON, RELATOR

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Relator Johanson Lee Watson, an indigent inmate, seeks a writ of mandamus to compel the Honorable Tom Neely to consider and rule on certain motions. Presenting four issues, relator maintains he is entitled to mandamus relief. For the reasons expressed herein, we must deny the request for a writ.

Pursuant to a plea of guilty, in 1997, appellant was convicted of sexual assault in the 46th District Court of Wilbarger County. In 2001, the convicting court denied relator's motion for DNA testing reciting that "no evidence containing biological material has been preserved, and that identity was not and is not an issue in this case." The trial court's ruling was affirmed by this Court in Watson v. State, 96 S.W.3d 497 (Tex.App.-Amarillo 2002, pet. ref'd). In May 2003, pursuant to relator's inquiry, the Texas Department of Public Safety notified him that evidence samples used in his case were still being preserved in the Department's laboratory.

Relator must satisfy three requirements to establish his entitlement to the issuance of a writ of mandamus, to-wit: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). When a motion is properly filed and pending before a trial court, the act of considering and ruling upon the motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). However, the trial court has a reasonable time within which to perform that ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426, (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). Other factors are influential such as the trial court's actual knowledge of the motion, its overt refusal to act, the state of its docket, and other judicial and administrative duties which must be addressed. In re Villarreal, 96 S.W.3d 708, 711 (Tex.App.-Amarillo 2003, orig. proceeding). Further, the party requesting relief must provide a sufficient record to establish his entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). See also In re Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig. proceeding); In re Villarreal, 96 S.W.3d at 710 n.2 (filing something with the district clerk does not demonstrate that a motion has been brought to the trial court's attention).

Several copies of documents presumably filed in the convicting court accompany relator's petition for writ of mandamus. On August 29, 2005, he filed a motion in the convicting court requesting appointment of counsel to pursue a motion for DNA testing pursuant to article 11.07, section four of the Texas Code of Criminal Procedure. A motion for leave to subpoena or call potential witnesses was filed on September 12, 2005, and on September 19, 2005, he filed a motion for leave for supplemental [sic] and exhibits.

According to copies of three letters dated October 5, November 1, and December 19, 2005, relator corresponded with the Wilbarger County District Clerk inquiring on the disposition of his motions. A copy of the District Clerk's response to relator's October 5th inquiry indicates his request was forwarded to his attorney, Earl Griffin. The limited record before us also contains a file-stamped motion dated November 29, 2005, for leave to compel the District Judge of Wilbarger County to act on relator's petition for writ of habeas corpus. Nothing in the scant record demonstrates presentation of the motions to the trial court and a refusal to act. We conclude relator has not satisfied the burden to show his entitlement to mandamus relief. See Walker, 827 S.W.2d at 837.

Accordingly, relator's petition for writ of mandamus is denied.

Don H. Reavis

Justice

when no "child custody proceeding" has been commenced in a court of another state having jurisdiction over the child and Texas has become the child's home state may a "child custody determination" of a court exercising emergency jurisdiction under §152.204(a) become final. Id. §152.204(b). ⁽³⁾

Application of Law

The proceeding from which this appeal arose was commenced on October 4, 2004. On that date, the Texas Department of Family and Protective Services (DPS) filed a document entitled "Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship." The fourth of October was also the date on which J.C.B.'s parents were arrested for possessing drugs while driving through Texas from Oklahoma. It is undisputed that neither J.C.B. nor his parents were residents of Texas at the time. Nor does anyone dispute that the child's home state was Oklahoma and that no Oklahoma court declined, in favor of Texas, to exercise its jurisdiction over J.C.B. Thus, it is clear that the trial court's jurisdiction to make a child custody determination could not be founded upon §152.201 of the Family Code. Yet, that is not true of §152.204.

With the arrest of his parents, J.C.B., who was approximately 16 months old, could not care for himself. Nor was there any friend or relative present and to whom the toddler could be released. So, while the arrest of his parents may not be deemed their abandonment of him in a technical sense, the child, no doubt, was faced with impending mistreatment or abuse if left alone. Thus, the trial court had temporary jurisdiction under §152.204(a) to intervene to secure his welfare. And, it did so by entering temporary orders on November 1, 2004, appointing the DPS his managing conservator.

Since November 1^st, and despite the release of J.C.B.'s mother from jail and her assumption of residence in Texas, the toddler remained in the managing conservatorship of the DPS until trial in February of 2006. Having had managing conservatorship over J.C.B. for those 14 months, it could be said that J.C.B.'s home state has since become Texas. ⁽⁴⁾ Additionally, not only did counsel for Richard inform the trial court that he knew of no other proceeding involving J.C.B. having been commenced elsewhere but also counsel for the DPS expressly represented that no such actions pended elsewhere. Given that these unsworn evidentiary comments by both counsel went uncontested, the trial court was entitled to rely on them as evidence establishing the subject of the utterances. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (recognizing that unsworn utterances of an attorney can be considered evidence if no one objects to them). So too do we note that actions to terminate parental rights fall within the scope of child custody determinations. See White v. Blake, 859 S.W.2d 551, 561-63 (Tex. App.-Tyler 1993, no writ) (so holding). And, in ordering the parental relationship to be terminated, the trial court implicitly directed that the subject of its order be final. Indeed, one cannot reasonably think of such an order as simply being temporary or a stop gap measure.

Taken together, the foregoing indicia serve to prove that the trial court had authority to act under §152.204(a). Having subject matter jurisdiction to act under that provision, we cannot but overrule Richard's contention. Thus, the trial court's order of termination is affirmed.

Brian Quinn

Chief Justice

1. The rights of the child's mother Kimberly Kay Beats were also terminated, but she has not filed an appeal.

2.

Stating that: "[a] court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." Tex. Fam. Code Ann. §152.204(a) (Vernon 2002).

3. The statute reads:

If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 152.201 through 152.203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.

Tex. Fam. Code Ann. §152.204(b) (Vernon 2002).

4. Admittedly, the definition of "home state" contains a residency requirement for a particular period before suit is commenced. See Tex. Fam. Code Ann.§152.102(7) (Vernon 2002) (defining the child's home state as the state in which the child lived with a parent or one acting as a parent for at least six months "immediately before the commencement of a child custody proceeding"). However, §152.204 permits a custody determination rendered via the emergency jurisdiction of a trial court to become final if, among other things, the child's home state becomes Texas once the order is entered. Considering the two together and affording each the authority implicit in their words, we cannot but conclude that the concept of "home state" differs when jurisdiction is invoked under §152.204(a) and omits the requirement that the six months of residence occur before the proceeding is commenced. If this were not so, then there could be no home state for purposes of finalizing orders rendered via emergency jurisdiction since the proceeding began before the child had resided with a parent or parent surrogate in Texas for six months. See First American Title Ins. Co. v. Strayhorn, 169 S.W.3d 298, 304 (Tex. App.-Austin 2005, pet. denied) (requiring us to interpret facially contradictory statutes in a way that upholds both).